Curry v. Superintendent

United States District Court, N.D. Indiana, South Bend Division

October 3, 2016

KEVIN L. CURRY, Petitioner,v.SUPERINTENDENT, Respondent.

OPINION AND ORDER

RUDY
LOZANO, JUDGE

This
matter is before the Court on the: (1) 28 U.S.C. § 2254
Habeas Corpus Petition by a Person in State Custody, filed by
Kevin L. Curry, a pro se prisoner, on January 8,
2016; and (2) Motion to Object to the Respondent's
Submission of the State Court Record, also filed by Kevin L.
Curry, on July 11, 2016. For the reasons set forth below, the
Court: (1) DISMISSES WITH PREJUDICE the Petition (DE 20); (2)
DENIES the motion to object (DE 30); and (3) DECLINES to
issue a certificate of appealability.

BACKGROUND

Curry
is serving a 44-year sentence for being convicted on one
count of corrupt business influence, fifteen counts of
forgery, and his adjudication as a habitual offender, in
State v. Curry, 20D02-0907-FC-0096. In deciding the
petition, the court must presume the facts set forth by the
state courts are correct. 28 U.S.C. § 2254(e)(1). It is
Curry's burden to rebut this presumption with clear and
convincing evidence. Id. On appeal from the denial
of post-conviction relief, the Indiana Court of Appeals
summarized the facts underlying Curry's offenses as
follows:

Curry created, forged, and cashed checks by using other
individuals to present the checks for cashing as purported
payroll checks. In each instance, after cash was obtained,
Curry split the sum with the presenter of each false check.
On July 1, 2009, the State charged Curry with one count of
Class C felony corrupt business influence and fifteen counts
of Class C felony forgery. Curry v. State, No.
20A03-1008-CR-454, slip op. at 4 (Ind.Ct.App. May 31, 2011),
trans. denied. Attorney Mark Manchak represented
Curry from August 2009 until November 2009, when Curry
elected to proceed pro se. Manchak served as standby
counsel from November 23, 2009, through January 2010. On
January 27, 2010, the State filed an amended information,
adding a habitual offender count. Attorney James Stevens
entered his appearance for Curry on February 19, 2010. On
June 24, 2010, a jury found Curry guilty on Counts I through
XVI and subsequently found him guilty on the habitual
offender count.

On direct appeal, Curry raised several issues: (1) the denial
of his motion for a directed verdict; (2) the sufficiency of
the evidence; (3) the belated amendment of the charging
information to include an habitual offender enhancement; and
(4) the appropriateness of his sentence. [The Indiana Court
of Appeals] remanded for clarification of his sentence but
affirmed in all other respects. [The Indiana] Supreme Court
denied transfer [on October 11, 2011]. Ex. C.

In April 2012, Curry filed a petition for post-conviction
relief, which he later amended. He raised three issues: (1)
ineffective assistance of trial counsel; (2) ineffective
assistance of appellate counsel; and (3) prosecutorial
misconduct. After a hearing, the post-conviction court denied
Curry's petition except with respect to his ineffective
assistance of appellate counsel argument regarding his
habitual offender enhancement. The post-conviction court
ordered a new trial regarding the habitual offender
enhancement.

Curry
appealed from the denial of post-conviction relief regarding
his ineffective assistance of trial counsel claims. (DE 25-9,
attached as Ex. I.) The Indiana Court of Appeals affirmed the
denial of post-conviction relief, finding that his trial
counsel was not ineffective. (EX. L.) Curry sought transfer
to the Indiana Supreme Court, (DE 25-13, attached as Ex. M),
which was denied (DE 25-4, attached as Ex. D).

Pursuant
to the grant of post-conviction relief, Curry was retried on
the habitual offender count and was again convicted on that
charge. On appeal from that re-trial, Curry challenged the
propriety of the evidence admitted at trial, the sufficiency
of the evidence, and whether the trial court erred by
allowing the State to add the habitual offender enhancement.
(DE 25-16 at 2, attached as Exhibit P.) The Indiana Court of
Appeals affirmed his habitual offender adjudication, (DE
25-17, attached as Ex. Q), and the Indiana Supreme Court
ultimately denied transfer (DE 25-20, attached as Ex. T).

Curry
initiated federal habeas proceedings on November 26, 2014,
and filed a second amended petition on January 8, 2016,
claiming: (1) that both his retained trial counsel and
standby counsel provided ineffective assistance; (2) the
evidence was insufficient to support the habitual offender
enhancement; and (3) that the State did not present
sufficient evidence to support his conviction under the
Indiana Corrupt Business Influence statute. (DE 20 at 3-8.)

DISCUSSION

Curry's
petition is governed by the provisions of the Anti-Terrorism
and Effective Death Penalty Act of 1996
(“AEDPA”). See Lindh v. Murphy, 521 U.S.
320, 336 (1997). AEDPA allows a district court to issue a
writ of habeas corpus on behalf of a person in custody
pursuant to a state court judgment “only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). The court can grant an application for habeas
relief if it meets the requirements of 28 U.S.C. §
2254(d), which provides:

An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.

28 U.S.C. § 2254(d).

Under
this deferential standard, a federal habeas court must
“attend closely” to the decisions of state courts
and “give them full effect when their findings and
judgments are consistent with federal law.”
Williams v. Taylor, 529 U.S. 362, 383 (2000). A
state court decision is contrary to federal law if the state
court arrives at a conclusion opposite to that reached by the
U.S. Supreme Court or reaches an opposite result in a case
involving facts materially indistinguishable from relevant
U.S. Supreme Court precedent. Bell v. Cone, 535 U.S.
685, 694 (2002). A federal court may grant habeas relief
under the “unreasonable application” clause if
the state court identifies the correct legal principle from
U.S. Supreme Court precedent but unreasonably applies that
principle to the facts of the petitioner's case.
Wiggins v. Smith,539 U.S. 510, 520 (2003). To
warrant relief, a state court's decision must be more
than incorrect or erroneous; it must be
“objectively” unreasonable. Id. This is
a difficult standard to meet, and “[a] state
court's determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court's
decision.” Harrington v. Richter, -U.S.-, 131
S.Ct. 770, 786 (2011). Instead, to obtain relief, a
petitioner must show the state court's ruling was
“so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id.
at 786-87.

The
governing Supreme Court case for resolving an ineffective
assistance claim is Strickland v. Washington, 466
U.S. 668 (1984). To establish ineffective assistance of
counsel under Strickland, the petitioner must show
that counsel's performance was deficient and that the
deficient performance prejudiced him. The court's review
of counsel's performance is “highly deferential,
” and the petitioner “must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.”
Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir.
2004). The prejudice prong requires the petitioner to show
that “but for counsel's unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. Where it is expedient
to do so, a court may resolve an ineffective assistance claim
solely on the prejudice prong; in other words, where the
petitioner cannot establish prejudice, there is no need to
consider in detail whether counsel's performance was
constitutionally deficient. See Strickland, 466 U.S.
at 697; Watson v. Anglin, 560 F.3d 687, 689-90 (7th
Cir. 2009).

Here,
in rejecting all three of Curry's ineffective assistance
claims, the Indiana Court of Appeals properly identified
Strickland as the governing standard. (See Ex. L at
4.) Of course, this Court's review of the state
court's application of Strickland is not de
novo. This review is limited to whether the state
appellate court's determination that Curry was not denied
effective assistance of counsel “was contrary to, or
involved an unreasonable application of”
Strickland. Richter, 131 S.Ct. 788.
Accordingly, the question for this court is whether the
appellate court's resolution of the claims was
unreasonable.

Counsel's
health

In
ground one, Curry claims that his trial counsel's
performance was detrimentally affected by his health. On
February 19, 2010, Attorney Stevens entered his appearance to
represent Curry in his criminal case. (Trial App. at 13,
146). Attorney Stevens moved to continue the scheduled March
9, 2010, trial. (Trial App. at 145.) The continuance was
granted and a jury trial commenced on June 22, 2010, and
ended with the jury finding Curry guilty as charged on June
24, 2010. (Trial App. at 15-16, 144; Trial Tr. 487-88, 411.)
Attorney Stevens died of pancreatic cancer on December 31,
2010. (PCR Tr. at 9; PRC Ex. 5c.)

Curry
points out that Stevens died of pancreatic cancer a few
months after the trial and argues that Steven's health
must have impaired his performance at trial. The appellate
court rejected Curry's ineffective assistance claim
pertaining to his counsel's health and untimely passing,
finding that Curry presented no evidence at the
post-conviction proceedings to support his claim. (Ex. J at
7.) This determination was not unreasonable. Upon review, the
only witness Curry called at the post-conviction hearing
concerning Attorney Stevens' health was Rowena Gutierrez.
She testified that she was a licensed practical nurse and had
worked with cancer patients in the past. (PCR Tr. at 57-58.)
During the trial, she observed that Attorney Stevens had lost
some weight. However, she admitted that she did not have any
professional medical contact with ...

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